FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-2641

LT Case No. 2020-CP-001864

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THOMAS SCOTT, as PERSONAL 

REPRESENTATIVE of the ESTATE 

of ANNA MARIE SCOTT,

Appellant,

v.

DEBORAH YOUNG and LINDA 

JEAN SCOTT,

Appellees.

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On appeal from the Circuit Court for Marion County.

Kristie M. Healis, Judge.

John S. Mills and Jonathan A. Martin, of Bishop & Mills, PLLC, 

Jacksonville, for Appellant.

Stanley W. Plappert, of The Florida Legal Advocacy Group, P.A., 

Ocala, for Appellee, Deborah Young.

No Appearance for Remaining Appellee.

October 4, 2024

KILBANE, J.

Appellant, Thomas Scott, appeals from an order granting a 

motion for judgment on the pleadings in favor of Appellee, Deborah 
2

Young, in an adversarial probate proceeding concerning their late 

mother’s (“the decedent”) estate.1 We reverse.

Facts

In the proceedings below, Young filed a petition requesting the 

probate court to appoint her as the personal representative of the 

decedent’s estate. The petition included the following: a codicil 

executed on September 20, 2018, which removed Scott as the 

personal representative and appointed Young to that position; and 

an August 14, 2018 order from a guardianship court issued in a 

separate proceeding finding the decedent to have testamentary 

capacity. Scott also filed both a petition for administration and an 

objection to Young’s petition. In the objection, Scott affirmatively 

pled that the decedent lacked testamentary capacity to sign the 

codicil or was unduly influenced. He noted that the decedent had 

been previously declared totally incapacitated and questioned how 

a guardianship order entered on August 14, 2018, which relied on 

medical evaluations conducted in April of 2018, could show that 

the decedent had testamentary capacity at the time she allegedly 

signed the codicil on September 20, 2018.

Young ultimately filed a motion for judgment on the pleadings 

and Scott responded, arguing that a factual dispute existed as to 

whether the decedent had possessed the requisite testamentary 

capacity to execute the codicil on September 20, 2018. The trial 

court granted Young’s motion, writing:

The [c]ourt finds that the [c]odicil executed September 20, 

2018, is valid because the ward was found to have 

testamentary capacity at that time. The 2018 

guardianship court entered a final order on that issue 

without objection and this [c]ourt will not relitigate an 

issue previously decided by a court of competent 

jurisdiction.

1 We have jurisdiction. See Fla. R. App. P. 9.170(b).
3

Analysis

We review an order granting a motion for judgment on the 

pleadings de novo. Nationstar Mortg., LLC v. Zorie, 146 So. 3d 

1209, 1211 (Fla. 5th DCA 2014). “In considering [a] motion [for a 

judgment on the pleadings], all well-pleaded allegations of the 

nonmoving party are taken to be true, while the moving party’s 

allegations, which were denied in the defendant’s answer, are 

taken as not proved.” Taylor v. Hanlex Dev., LLC, 274 So. 3d 512, 

513 (Fla. 5th DCA 2019).

Here, Scott sufficiently pleaded a basis to believe that the 

decedent did not have testamentary capacity at the time she 

allegedly executed the codicil, which the trial court had to accept 

as true. By the same token, the trial court was obligated to take 

as unproved Young’s claim that the decedent did have

testamentary capacity at the time of execution. Accordingly, the 

matter should have proceeded allowing both parties to present 

their cases. Instead, the trial court appeared to labor under a 

misconception that further proceedings were not needed because 

the guardianship order was dispositive on the question of the 

decedent’s capacity at the time of execution. On the facts of this 

case, that conclusion was incorrect.

Under well-established Florida law, a testator must possess 

testamentary capacity at the time of executing a will or codicil, see, 

e.g., In re Wilmott’s Estate, 66 So. 2d 465, 468 (Fla. 1953); Jervis v. 

Tucker, 82 So. 3d 126, 128 (Fla. 4th DCA 2012); Raimi v. Furlong, 

702 So. 2d 1273, 1286 (Fla. 3d DCA 1997); Coppock v. Carlson, 547 

So. 2d 946, 947 (Fla. 3d DCA 1989); In re Bailey’s Estate, 122 So. 

2d 243, 245 (Fla. 2d DCA 1960), which, in this case, allegedly 

occurred over a month after the guardianship court entered its 

order. That does not mean the guardianship court’s order is 

irrelevant, however. Testamentary capacity at the time of 

execution “may be established by inferences from proof of [the 

testator’s] mental condition leading up to and following the 

execution of the will when such proof is properly related and 

connected.” In re Zimmerman’s Est., 84 So. 2d 560, 562 (Fla. 1956). 

The guardianship court’s order is certainly some proof of the 

decedent’s mental capacity leading up to the time she allegedly 

executed the codicil. Nevertheless, it is insufficient to entitle 
4

Young to a judgment on the pleadings, as the trial court was 

obligated to take Scott’s sufficiently pleaded allegations as true

when considering the motion.

2

Conclusion

Based on the foregoing, we reverse and remand for further 

proceedings in accordance with this opinion.

REVERSED and REMANDED.

WALLIS and PRATT, JJ., concur.

2 While a collateral attack on the guardianship court’s order 

would be inappropriate, we offer no opinion on whether Scott may

introduce evidence of improprieties with the guardianship 

proceeding to the extent that may be relevant to what weight the 

probate court should allot the guardianship order on remand.
5

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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